Immigration Reform: REAL ID and a Federal ‘No Work’ List

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Immigration reform is now in limbo, perhaps to return to theSenate floor for a vote, perhaps not. The debate so far - over'amnesty,' border control, and guest workers-has assumed that"workplace enforcement" is a good thing. But verifying workers'employment eligibility, as called for in the Senate immigration bill, is not such a goodidea. It would revive the failing national ID plan in the REAL IDAct, create a mission-creepy surveillance system, and subject everyAmerican worker to a bureaucratic gauntlet akin to the Departmentof Homeland Security's embarrassing "no-fly" list.

The overall purpose of immigration law reform is salutary.Aligning immigration law with the nation's strong economic demandfor new workers would foster lawful behavior among migrant workers,immigrants, and employers. But by establishing an "electronicemployment verification system" tied to the infamous REAL ID card,the immigration bill in the Senate would promote surveillance andtracking of every American, native-born and immigrant alike.

Since the Immigration Reform and Control Act of 1986 introducedthe I-9 form and criminalized hiring illegal immigrants, many havecome to accept that Americans' ability to work should depend onbeing eligible under federal law and doing the paperwork to proveit. Employment eligibility verification has not reduced illegalimmigration, though, so immigration reform is back on Congress'sagenda.

When a policy is failing, Congress has a choice: scrap it, orstrengthen it. The option that increases federal spending andfederal control is almost always the one that carries the day inthe federal city. Despite its failure, the march to strengthenworkplace enforcement continues.

The groundwork for the current push was laid in the IllegalImmigration Reform and Immigrant Responsibility Act of 1996. Itrequired the Immigration and Naturalization Service to commenceelectronic verification of employees' work eligibility, a programcalled "Basic Pilot." In Basic Pilot, employers enter theinformation supplied on workers I-9 forms into a governmentwebsite. It is compared with information held by the SocialSecurity Administration and DHS to determine whether the employeeis work-eligible.

When the system cannot confirm a worker's eligibility, it issuesthe employer a "tentative nonconfirmation." The employer mustnotify the affected worker, and the worker has the right to contesthis or her tentative nonconfirmation within eight working days bycontacting SSA or the Customs and Immigration Service. When aworker does not contest his or her tentative nonconfirmationquickly enough, the Basic Pilot program issues a finalnonconfirmation and the employer is required to either immediatelyterminate the worker or notify DHS of its continued employment ofthe worker.

Title III of the Senate immigration bill wouldexpand this program to all employers and workers within threeyears. This is much more easily said than done. It is unlikely tohave the effects its proponents want. And it would be costly inboth dollars and privacy.

Most people are familiar with the agonizing lines, the randomscreenings, and the Kafkaesque "suspect" treatment some get atairports. Title III would bring this state of affairs to theemployment process. Last December, the Social SecurityAdministration's Office of Inspector General estimated that theSSA's "Numident" file - the data against which Basic Pilot checksworker information - has an error rate of 4.1%. All of the cases it analyzedresulted in Basic Pilot providing incorrect results. At this rate,one in every 25 new hires would receive a tentativenonconfirmation. That would leave millions of American workers toengage with government bureaucracy seeking permission to hold a job- most likely during hours they are supposed to be at work.

The dollar costs of a nationwide electronic verification systemwould be high. In December 2005, the Congressional Budget Officeestimated the costs of the electronic employment verification systemin H.R. 4437, an immigration reform bill in the 109th Congress.CBO estimated $100 million in short-run costs for upgradingsoftware, hardware, databases, and other technology. To handlequeries about tentative nonconfirmations, DHS and SSA would havehad to spend about $100 million per year on new personnel. This isto say nothing of the costs to employers and workers, especiallythose denied permission to work. These costs would fall on U.S.taxpayers - not illegal immigrants.

Electronic verification would have far greater privacyconsequences than the current system - consequences that would alsofall on American citizens. Unlike paper records, when an employerenters I-9 information into a web form and sends it to the SSA andDHS, that information becomes very easy for those entities toaccess, copy, or use. It is combined with "meta-data" - informationabout when the information was collected, from whom, and so on. Theprocess gives the government access to a wealth of data about everyAmerican's working situation. It can easily be correlated with taxrecords at the IRS, education loan records in the Department ofEducation, health records at the Department of Health and HumanServices, and so on. Title III specifically requires the IRS toshare taxpayer data with DHS. Electronic employment eligibilityverification will unravel the privacy of law-abiding Americancitizens.

Disclosure to the government is not the only privacy-relatedconcern with an electronic employment verification system. Datasecurity is an issue as well. We have seen massive data breaches from government agencies in the recentpast, and from private entities too. Watch for identity theft torise if there is electronic employment eligibilityverification.

Illegal workers will need new name and Social Security numberpairs to use against the system. The very best source will be thesystem itself - the SSA and DHS databases, the offices where"tentative nonconfirmations" are processed, the people that processthem, and the communications links that connect all these elements.Any electronic employment verification system will be a target forhackers, a data breach waiting to happen, and a threat to theidentity system we rely on today. Electronic employmentverification would put Americans' sensitive personal information atrisk. The best security against data breach is not collectinginformation in the first place.

This Byzantine verification system is built on an attempt torevive the collapsing REAL ID Act, the national ID law that hasalready been rejected by sixteen of the states on which itrelies for implementation. Title III requires every American tohave a REAL ID compliant card by 2013 if they want to get federalapproval for working, and the bill would spend $300 million tryingto get states to implement the REAL ID Act. This is a paltry sum,given the more than $10 billion DHS' own estimates say states wouldhave to spend. That $300 million shouldn't be spent on a nationalsurveillance system at all; it should be returned to taxpayers. TheDHS should not resurrect the failed national ID system through theimmigration reform plan. Law-abiding, native-born Americans shouldbe able to work without carrying a national ID.

Bringing immigration law in line with the wants and needs ofAmerican citizens and immigrants will do more for the rule of lawthan the "workplace enforcement" provisions in the immigration billever could. Title III is not only unnecessary, but also expensiveand invasive. When immigration law reform comes back, lawmakersshould closely consider whether surveillance of American workers issomething they support, no matter what their positions on otherimmigration issues.